Oshawa judge rules mandatory gun minimum unconstitutional

Refusing to make one size fit all, an Ontario judge has just taken another shot at Ottawa’s get-tough-on-crime mandatory minimum sentences for gun offences.

The automatic three-year term for a first-time gun trafficker has been struck down for the first time as unconstitutional by Ontario Court Justice Paul Bellefontaine. His landmark ruling follows the decision by his Superior Court colleague in February that found the same mandatory minimum for the possession of an illegal loaded gun also violates the Charter.

Bellefontaine said Friday morning it would be “cruel and unusual punishment” to sentence cocaine dealer Christopher Lewis, 21, to the automatic term just for the “hollow” boasting to an undercover cop that he could get him a .45 calibre weapon when he had no gun and never had any intention of selling him one.

“I consider a three-year penalty to be excessive and disproportionate for Mr. Lewis,” he said in his judgment. “Parliament has imposed a minimum penalty that addresses a worst case offence but which grossly over penalizes the many lesser ways that the same crime can be committed.”

It is the second major blow to the mandatory minimums imposed by the Conservative government’s 2008 Tackling Violent Crime Act to deal with rising concern over gun crimes.

In February, Justice Anne Molloy unleashed a firestorm with her controversial refusal to impose the automatic three-year term on Leroy Smickle, the Facebook ham caught preening and posing on a webcam with his cousin’s loaded handgun. In a decision now under appeal by the Ontario attorney general, Molloy concluded that it would be “fundamentally unfair, outrageous, abhorrent and intolerable” to send the “foolish” but employed first-time offender to prison for so long.

In this case, Bellefontaine also ruled that three years for an “ill-advised sales pitch” was overkill.

While Lewis pleaded guilty to three counts of cocaine trafficking, the mid-level drug dealer has no previous weapons convictions and insisted his offer to sell a “four-fifths” to the undercover Durham officer was just bravado and his way of trying to secure a steady customer.

“The evidence was clear he did not have a firearm or access to one or any intention to actually obtain and transfer one,” the judge agreed.

The weapons trafficking section of the Criminal Code makes it illegal to “transfer” or even offer to transfer — by selling, giving or lending — an illegal firearm. The penalty for a first offence used to be a minimum one year in jail but was raised to three years by the federal Conservatives in 2008 following a public outcry, especially in Toronto, over the 139% increase in firearm charges over the previous seven years.

Bellefontaine seemed to have no trouble with the automatic minimum when applied to someone actually selling loaded weapons, but disagreed with the part of the section that also mandates the same term just for offering to get someone a gun, whether they follow through with the offer or not.

“While firearms in general and handguns in particular are dangerous and a pressing public concern in the greater Toronto area, the hollow offer that forms the substance of this charge has to be seen to be a less serious offence that the actual possession of a firearm,” he said.

Without having the ability to pick and choose which parts of the gun trafficking section he found unconstitutional, Bellefontaine said he had no choice but to rule that all of it contravened the Charter.

Lewis’s lawyer Jeff Mazin applauded the judge’s bold decision.

“This ruling demonstrates that not all offences involving firearms, real or imagined, should carry the same penalty,” Mazin said. “It’s a victory for Charter rights in this country.”

The judge sentenced Lewis, a father of two, to one year on the drug charges on top of the year he has already served in custody. Instead of giving him the mandatory three years on the gun trafficking count, Bellefontaine added one year to his prison term.

Once again, a rebellious Ontario judge has indicated that the bench must be allowed to use its discretion and latitude when it comes to sentencing. But no doubt like the Molloy decision, this ruling will also be heading to the court of appeal.

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